An urgent plea of an alleged rape victim challenging constitutional validity of section 3 (2) (b) of the Medical Termination of Pregnancy Act, 1971 (MTP), the Indian abortion law which prohibits termination of pregnancy after 20 weeks even if there was a fatal risk to the mother and the foetus, will be heard by the Supreme Court on 21 July, 2016. The matter is listed before the Bench comprising of Justices Khehar & Arun Mishra.
Since, in the present case, the life of the woman is in grave danger, Senior Advocate Colin Gonsalves and Satya Mitra mentioned the matter for urgent hearing. This will become one of it’s kind judgement, if the woman succeeds, as it will kindle the hope for the lakhs of women who are forced to give birth to abnormal or stillborn babies every year.
Out of the 26 million births that occur in India every year, approximately 2-3 per cent foetuses have a severe congenital or chromosomal abnormality, WHO estimate. “The 20 week period may have been reasonable when the section as enacted in 1971 but has ceased to be reasonable today where technology has advanced and it is perfectly safe for a woman to abort even up to the 28th week and thereafter”, stated in the petition by the counsels. “Determination of foetal abnormality in many cases can only be done after the 20th week and by keeping the ceiling artificially low, women who obtain reports of serious foetal abnormality after the 20th week have to suffer excruciating pain and agony on account of the deliveries that they are forced to go through. The ceiling of 20 weeks is therefore arbitrary, harsh and discriminatory and violates the right to equality and right to life provided under Constitution”, stated by the counsels.
Via petition several prayers are sought, a writ of declaration or any other appropriate writ, order or direction quashing section 3(2)(b) of The Medical Termination of Pregnancy Act, 1971 to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under section 3, as ultra vires Article 14 and 21 of the Constitution of India; Appropriate writ, order or direction quashing section 5(1) of the Act to the limited extent that it restricts abortions under section 5 to a restricted field where it is immediately necessary to save the life of the pregnant woman; For a declaration to the effect that the expression “save the life of the pregnant woman” in Section 5 of the MTP Act includes “the protection of the mental and physical health of the pregnant woman” and also incorporates situations where serious abnormalities in the foetus are detected after the 20th week of pregnancy. For a writ of mandamus or any other appropriate writ, order or direction, directing the Centre to allow the Petitioner under a Medical Termination of the Pregnancy. For a declaration that the rational ceiling for abortions being done under section 3 of the Act is 24 weeks in view of the material placed on record by the Petitioner; For an order directing Centre to produce the report of MTP Committee which included the Health Secretary, Mr. Naresh Dayal, former Director¬ General of the Indian Council of Medical Research and Dr. N K Ganguly as its members. For an order directing the Centre to provide necessary directions to the hospital for setting up an expert panel of doctors to assess the pregnancy and offer MTP to at least women and girls who are survivors of sexual violence and have passed the period of 20 weeks.
If the petition of the victim succeeds, it will surely bring a breakthrough in the abortion laws in India.
By – Nikita Goel